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versão On-line ISSN 2078-5135versão impressa ISSN 0256-9574

SAMJ, S. Afr. med. j. vol.101 no.4 Cape Town Abr. 2011

CORRESPONDENCE

Termination of pregnancy and children

To the Editor: Recent articles1,2 addressed the duty of health care professionals and researchers to report sexual activity involving children. They discuss the interpretation and practical implications of section 54 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act No. 32 of 2007 (Sexual Offences Act), which requires that 'a person who has knowledge that a sexual offence has been committed against a child must immediately report such knowledge to a police official'. The articles give guidance on the circumstances under which health care professionals and researchers, respectively, should report child abuse and who to report it to. However, it is of concern that some of their arguments seem to be based on a misinterpretation of section 56(2) of the Sexual Offences Act.

McQuoid-Mason1 highlights inter alia the conflict between medical confidentiality and the mandatory reporting of consensual sexual acts with certain children which is criminalised under the Sexual Offences Act (sections 15, 16). He suggests that it may be justifiable for a medical practitioner not to report a pregnancy of a child resulting from a statutory rape (i.e. consensual sexual penetration) in cases where the defence of section 56(2)(b) of the Sexual Offences Act is applicable. Under section 56(2)(b) of the Sexual Offences Act it is a valid defence 'to contend that both the accused persons were children and the age difference between them was not more than two years at the time of the alleged commission of the offence'. His argument seems to be that if the court would not find the children guilty of statutory rape because of a valid defence, then there is no basis for asking the medical practitioner to report such an offence (and breach his patient's confidentiality) in the first place. However, the defence of section 56(2)(b) of the Sexual Offences Act does not apply to statutory rape; it only applies to the offence of statutory sexual assault (section 16 of the Sexual Offences Act), which deals with non-penetrative sexual acts with certain children. The argument of section 56(2)(b) of the Sexual Offences Act serving as a defence for statutory rape and thereby obliterating the doctor's duty to report is therefore of no avail.

Similar thoughts seem to guide Bhana et al.2 in discussing standards for researchers for the reporting of sexual activity and abuse of minors. They argue that no formal reporting action needs to be taken by researchers when receiving reports of consensual sex between minors where the parties involved are no more than 2 years apart in age. They emphasise that the age difference of 2 years is a crucial factor for a decision about reporting sexual activity. However, in the light of section 56(2)(b) of the Sexual Offences Act, the age difference can only be a guide in deciding about reporting cases of consensual sexual violation with children (i.e. non-penetrative sex), because the provision does not apply to statutory rape.

The authors' suggestion that the Sexual Offences Act 'replaces previous legislation where reporting could be done to a social worker or the police' ignores the fact that the Sexual Offences Act does not repeal or amend the mandatory reporting provisions created under the Children's Act No. 38 of 2005. Reporting sexual child abuse to the Department of Social Development, a designated Child Protection Organisation or the police, as provided for under section 110(1) of the Children's Act, is therefore still an option.

We recognise the urgent need to provide guidance and specific protocols to clarify health care professionals' and researchers' duties when working with children. However, these must be carefully drafted to truly comply with existing legislation.

Professor McQuoid-Mason replies: Dr Röhrs states that the suggestions made in the SAMJ1,2 are not a true reflection of the law in the Sexual Offences Act.3 She correctly points out that it is only in respect of statutory sexual assault and not statutory rape that the Sexual Offences Act4 states that it is a defence that both the accused were children under the age of 16 years and the age difference between them was not more than 2 years at the time of the alleged offence. She further states that reporting sexual child abuse in terms of the Children's Act5 is still an option. I submit that there are still good reasons why doctors may be able to avoid criminal liability in terms of the Sexual Offences Act3 for not reporting such cases where it would not be in the best interests of the children to do so.

The constitutional principle of the best interests of the child must prevail over the duty under the Sexual Offences Act to report consensual sexual penetration between children under 16 years where their age difference is less than 2 years.

The Constitution,6 the supreme law of South Africa,7 clearly states: 'A child's best interests are of paramount importance in every matter concerning the child'.6 The Constitution does not define the child's 'best interests', but the Children's Act states that factors that should be taken into account are: (i) the nature of the relationship between 'the child and any other care-giver or person relevant in those circumstances'; (ii) the child's age, maturity and stage of development, gender, background and any other relevant characteristic of the child; (iii) the child's physical and emotional security and his or her intellectual, emotional, social and cultural development; (iv) the need to protect the child from any physical or psychological harm that may be caused by subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; and (v) deciding which action would avoid or minimise further legal or administrative proceedings in relation to the child.8

Requiring doctors to report to the authorities consensual sexual penetration between adolescents where both are children under the age of 16 years and the age difference between them is not more than 2 years, violates most of the factors in the Children's Act8 as affecting the best interests of the child standard, and may be considered unconstitutional. For instance, the best interests of the child will be undermined if a report in terms of the Sexual Offences Act4 results in criminal prosecution because: (i) the relationship between doctors and the children concerned may be harmed where such doctors are 'relevant persons' regarding terminations of the pregnancy, and girl children will no longer trust or seek help from them; (ii) the Act does not allow a doctor a discretion to take into account the children's age, maturity and stage of development, gender, background and any other relevant characteristics; (iii) the children's physical and emotional security may be harmed and their intellectual, emotional, social and cultural development adversely affected if they are exposed to the criminal justice system; (iv) the children may suffer physical or psychological harm by being exposed to degradation or other harmful behaviour when interrogated by the police or others in the criminal justice system; and (v) a criminal charge will expose the children to legal or administrative proceedings, which the Children's Act8 states should be avoided. Despite the criminalisation of the duty to report consensual sexual penetration between adolescents where both are children under the age of 16 years, and the age difference between them is not more than 2 years at the time of the alleged offence, doctors may avoid making such a report where they are acting in the 'best interests of the child' as required by the Constitution (for a full discussion for the rationale behind these submissions, see McQuoid-Mason9).

Should consensual penetrative sex between teenagers less than 16 years old who have an age difference of less than 2 years be reportable as 'child abuse' in terms of Children's Amendment Act?

'Child abuse' may be defined as 'maltreatment of children which results in harm or the potential risk of harm to a child, usually of a physical, emotional or sexual nature'.10 The Children's Amendment Act11 imposes a legal duty on individuals and health care professionals who on reasonable grounds conclude that a child has been physically injured, sexually abused or deliberately neglected.12

The reporting person must have reasonable grounds for concluding that the child has been physically or sexually abused or deliberately neglected and needs care and protection. Therefore, if the doctor concerned does not conclude that child abuse has occurred, such conduct does not have to be reported in terms of the Children's Act12 - provided the doctor is acting in the best interests of the child as required by the Constitution6 and the Children's Act.13 Where the age difference between the children engaged in consensual sex is less than 2 years, whether or not the doctor reports this to the authorities in terms of the Sexual Offences Act4 will depend on the best interests of the children, as required by the Constitution.6

It may also be argued that where the age difference between the children is less than 2 years and consensual sex has occurred, such conduct does not constitute child sexual abuse and should not be criminalised - unless one of the children was in a position of power or control over the other - as is the case in Canada.14